Privacy, Police Power, and the Growth of Public Power in the Early Twentieth Century: A Not So Unlikely Coexistence

Carol Nackenof

Louis Brandeis and Samuel Warren published The Right to Privacy in the Harvard Law Review in 1890 because they were concerned that the modern era provided inadequate safeguards for protection of the private realm and the “right to one’s personality.” With the emerging recognition of a “man’s spiritual nature,” feelings, and intellect, came the acknowledgement of “the right to enjoy life—the right to be let alone.” Brandeis and Warren argued that if thoughts, emotions, and sensations demanded legal protection, that the common law was beautifully capable of growing to afford such protections, and judges could “afford the requisite protection, without the interposition of the legislature.” The notion of battery, for example, was expanded to offer “a qualified protection of the individual against offensive noises and odors, against dust and smoke, and excessive vibration,” and the law of nuisance developed. The common law was vibrant, useful, and far from dead.

Influential from the time it was published at the outset of the Progressive Era, the Warren and Brandeis article was a harbinger of a new wave of concern for personal privacy and for legal protections thereof. It is noteworthy—but not surprising—that this escalating interest in the right to be let alone developed alongside expanded use of common and statutory law to extend state power over children, juveniles, and families of poor and working class residents and citizens, as well as over Native American families and others who were seen as economically dependent, vulnerable, or irresponsible. Eileen McDonagh has even characterized the Progressive Era as an era of negative civil rights, with legislatures actively curtailing the civil rights of particular groups. Ken Kersch argues that progressive reformers did not so much discover individual rights, as displace and marginalize pre-existing rights claims with their own (and constitutionally enshrined) rights conceptions. He further points to “the tension at the heart of liberal political cultures between their animating commitment to the prerogative of the individual concerning his conscience and his choices, and the recognition . . . that the essence of government is to guide and to coerce.” At certain times, the question of when it is justifiable to coerce individuals—because of perceived reform imperatives and perceived threats—in order to protect or advance public morals becomes highly politicized, implicating the boundaries between public and private. And, “[a]s a practical matter, these arguments will often be subsumed within arguments about law, be it (judge-made) common, statutory, or constitutional.”11 The Progressive Era was just such a period of contestation, involving redefinition of public and private.